A Conversation with the MSPB Ahead of National Whistleblower Appreciation Day
FEDtalk is recognizing National Whistleblower Appreciation Day with all three newly confirmed Members of the Merit Systems Protection Board (MSPB). With its first quorum in five years, the MSPB is back and ready to hear cases. The newly confirmed Board is facing a backlog of over 3,500 cases with about 25 percent whistleblower cases.
Acting Chair Cathy Harris and Board Members Tristan Leavitt and Raymond Limon discuss the Board’s approach to the backlog and plans for protecting whistleblowers.
First, the Board discusses the mission of the agency and what aspects of the mission were stunted by the lack of a quorum.
“The mission of our agency is to support and defend the merit systems principles, which are set out in statute. If you read them, they’re pretty amazing. They talk about recruiting individuals from appropriate sources to achieve all segments of society; to determine selections based on relative ability, knowledge, and skills after a process of fair and open competition which ensures all receive equal opportunities, and that’s just the first merit principle,” Harris explained.
A full list of merit principles, prohibited personnel practices, and an explanation of their history can be found here. When an individual alleges a violation of merit principles, they may bring a case before the MSPB. These cases include whistleblower cases. Unfortunately, for the last five years, the MSPB has lacked a quorum.
“Without any Board Members at all [stays in whistleblower cases] could not be issued at all. In addition to whistleblower cases, the [MSPB] docket includes other appealable actions… so firings, demotions, suspensions of 15 days or more. The MSPB has very board jurisdiction so things like disability retirement cases, a really broad array of cases that were all halted. There was no finality, no resolution,” Leavitt explained.
While many cases received a decision at the administrative judge level, individuals who chose to appeal their decision to the MSPB would have to get in line and await the Board’s return. This has caused a backlog of some 3,600 cases, of which Acting Chair Harris reports roughly 25 percent are whistleblower cases.
While tackling the backlog has been a challenge, the Board Members discuss how career staff prepared for the Board’s return to ensure an efficient transition back to work.
“One thing a lot of people may not realize about the MSPB’s process is that we have an office of writing attorneys who write up draft decisions for the Board and so when there were no Board members the work of that office did not cease. The continued as new cases were appeals from the AJ level, they continued to write those draft opinions… with multiple levels of review,” Leavitt explained.
This allowed to Board to work more efficiently when the Members entered their positions. While the Board still conducts a thorough review of each case, these draft opinions prevented them from starting from scratch. Some of these drafts were written years ago; however, Limon noted that career staff closely monitored evolutions in case law and revisited and updated their drafts as changes in the law occurred.
Leavitt continued, “There is an immense about of staff effort that goes into… both preparing for the restoration of the quorum and, now that the quorum has been restored, to continue to back that up with the work that’s been done.”
With a quorum in place, “career staff finally able to see action on things they have worked on for a really long time,” Leavitt explained.
As the Board gets back to work at full capacity, the Members went on to discuss how they are taking action to restore trust among whistleblowers who have gone years without a decision.
“The Board is back, and we are here to do justice… If you’re a whistleblower who has been holding off reporting something because you feel like there is nowhere to go, well, we are back. We want to hear your case, and we want to do what we can to protect whistleblowers in the federal government,” Harris said.
While the Board’s role in defending whistleblowers is critical, Leavitt reminds listeners that the goal is to prevent a case from ever getting to the MSPB.
“We hope we don’t have to hear your case. We hope when you disclose waste, fraud, and abuse, there is no retaliation because that is really the culture change that would be necessary in the government,” Leavitt explains.
Listen to the full show for a discussion on how the Board members are cutting down on the backlog; how technology and the COVID-19 pandemic has evolved the Board’s operations; and their approaches to evolving case law.
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You can stream the show online anytime on Federal News Network or listen to FEDtalk on all major podcasting platforms. FEDtalk is a live talk show produced by Shaw Bransford & Roth P.C., a federal employment law firm. Bringing you the insider’s perspective from leaders in the federal community since 1993.